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PEOPLE v. LAYTON

302 A.D.2d 408 (2003)

754 N.Y.S.2d 552

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARRYL G. LAYTON, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 3, 2003.

Ordered that the judgment is modified, on the law, by vacating the conviction of robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant correctly contends that he established his affirmative defense that the gun used in the robbery was a BB gun and thus was not a firearm (see Penal Law § 160.15 [4]; People v Wilson,

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